Wood v. Stone
| Decision Date | 31 December 1865 |
| Citation | 42 Tenn. 369 |
| Parties | WOOD v. STONE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM CANNON.
There was a judgment in this case, at the June term, 1865, in favor of Stone, for the value of the gun, Judge HENRY COOPER, presiding. Defendant appealed.
ROBERT CANTRELL, for plaintiff in error.
M. M. BRIEN, SR., for defendant in error.
This is an action commenced by warrant, before a justice of the peace of Cannon county, to recover the price of a rifle gun, which, it is alleged in the warrant, was taken and converted to the use of the plaintiff in error. There was judgment, before the justice, in favor of the defendant in error, and an appeal to the circuit court of Cannon county, when, on a trial before a jury, the justice's judgment was affirmed, and an appeal in error prosecuted to this court.
It appears from the record that one B. J. Hill, through the agency of Governor Harris, obtained permission of the rebel secretary of war, to raise and equip a regiment of infantry, to serve in the army of the “Confederate States,” for one year; and that at the time the rifle gun in controversy was purchased, the plaintiff in error was a captain, commanding a rebel company in Hill's regiment, and that the gun was obtained for the purpose of arming his company. The contract appears to have been made about the 5th of September, 1861, within this state, and during the time it was held and occupied by the military forces of the “Confederate States.” It was voluntarily made, and with full knowledge, on the part of the defendant in error, of the purpose for which the gun was purchased, and the service in which it was to be employed.
Under this state of facts, the circuit judge instructed the jury, among other things, which appears not to be excepted to, as follows: “If you should believe, from the proof, that the plaintiff sold the defendant his rifled gun, knowing at the time it was to be used in the Confederate or rebel army, and you should further believe, from the proof, that at the time of the sale, this country, where both parties were living, was in the possession and under the control of the military authorities of the so-called “Confederate States,” they having been recognized a belligerent power by the government of the United States, and holding military occupation of the country where the contract was made, at the time it was made, then, under such a state of facts, if they exist, the plaintiff would be entitled to recover from the deendant whatever the proof may show the gun was worth at the time of the contract, all other questions being out the way.”
The facts of this case are remarkably strong. Open war, at the date of this contract, was being waged, by an unlawful combination of the insurgent states, to overthrow the government and authority of the United States, within their limits. The State of Tennessee had declared its independence, and by an ordinance of its legislature [Acts 2d ex. ses. 1861, ch. 1], assumed to dissolve the federal relations between the state and the United States of America. War was actually levied, and flagrant, against the laws, constitution and government of the United States. The president had called upon “the several states of the union” (Tennessee included), for the militia to the aggregate amount of 75,000, to suppress the unlawful combination that was making war against the government, and to cause the laws thereof to be duly executed. The insurgents had been warned by his proclamation to disperse and retire peaceably to their respective abodes, and within less than one month before this transaction, the State of Tennessee, by executive proclamation, had been formally declared in insurrection, and all intercourse between her citizens and the citizens of the loyal states prohibited. With these facts fully within the knowledge of the defendant in error, he entered, with his eyes open, into this contract; and now, after the...
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